Maulana Abdul Shakur Vs. Rikhab Chand
& ANR  INSC 66 (12 September 1957)
DAS, SUDHI RANJAN (CJ) AIYYAR, T.L.
VENKATARAMA SINHA, BHUVNESHWAR P.
CITATION: 1958 AIR 52 1958 SCR 387
Election Dispute-Disqualification for
Election-"Office of Profit under Government "-Manager of Durgah
Khwaja Saheb School, if holds office of Profit under Government-Durgah Khwaja
Saheb Act, 1955 (XXXVI Of 1955), ss. 4(1), 5, 6, 9, 11, 20Constitution of India,
Art. 102(1) (a).
The appellant was the manager of a school run
by a committee of management formed under the provisions of the Durgah Khwaja
Saheb Act, 1955. He was appointed by the administrator of Durgah Khwaja Saheb
and was being paid Rs. 100 per month. He was elected to the Council of States
by the Electoral College of Ajmer and the unsuccessful candidate, the first
respondent, challenged the election on the ground that the appellant wag
holding an office of profit under the Government at the time of the election
and was, therefore, disqualified to be chosen as a member of Parliament in view
of Art. 102(1) (a) of the Constitution of India. It was contended for the first
respondent inter alia that as under ss. 5 and 9 of the Act the Government of India
had the power of appointment and removal of members of the committee of
management as also the power to appoint the administrator in consultation with
the committee, the appellant was under the control and supervision of the
Government and that therefore he was holding an office of profit under the
Government of India. But the appellant was neither appointed by the Government
of India nor removable by it nor was his salary fixed by the Government and it
was paid out of the funds of the Durgah Endowment.
Held, that the appellant was holding his
appointment under a committee which was a statutory body and could not be
considered as the holder of an office of profit under the Government of India
within the meaning of Art. 102(1) (a) of the Constitution of India.
Accordingly, the election of the appellant was valid.
Shivnandan Sharma v. The Punjab National Bank
Ltd., (1955) 1 S.C.R. 1427, distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 335 of 1957.
Appeal by special leave from the judgment and
order dated January 31, 1957, of the Election Tribunal, Ajmer, in Election
Petition No. 2 of 1956.
50 388 Mukat Behari Lal Bhargava and Naunit
Lal, for the appellant.
Respondent No. 1 in person.
1957. September 12. The following Judgment of
the Court was delivered by KAPUR,J.-This is an appeal from the order of the
Election Tribunal dated January 31, 1957, setting aside the election of the
appellant, Maulana Abdul Shakoor, who was elected to the Council of States by
the Electoral College of Ajmer which consisted of 30 members constituting the
State Legislature of Ajmer. He received 19 votes as against 7 polled in favour
of the other candidate who is respondent No. 1 in this appeal. The total number
of valid votes polled was 26 and there were 3 invalid votes. The result of the
election was published in the Official Gazette on March 31, 1957, declaring the
election of the appellant. The unsuccessful candidate, the present first
respondent, filed his election petition on May 2, 1956. It is not necessary to set
out all the allegations in the petition because the main controversy between
the parties is whether the successful candidate, the present appellant, held an
" office of profit " under the Government. The impugned election was
held on March 22, 1956.
By a notification issued on February 17,
1956, the nominations for candidature were to be filed between February 28,
1956, and March 1, 1956. The date for scrutiny was March 5, 1956, and for the
polling March 22, 1956. The appellant filed two nomination papers on February
28, 1956, and a third one on March 1, 1956. The respondent Rikhab Chand Jain
also filed his nomination papers on March 1, 1956. On March 5, 1956, the
respondent Rikhab Chand Jain raised certain objections to the validity of the
appellant's nomination, the main ground being that the appellant was holding an
office of profit under the Government. The Returning Officer by his order dated
March 6, 1956, rejected the two nomination papers of the appellant filed on
February 28, 1956, but accepted the third one, i.e., of March 1, 1956, because,
according to that officer, 389 under the provisions of Durgah Khwaja Saheb
(Emeregency Provisions) Act, 1950 (XVII of 1950) which was in force up to
February 29, 1956, the appellant was holding an office of profit under the
Government but on the coming into force of the Durgah Khwaja Saheb Act (XXXVI
of 1955) on March 1, 1956, he no longer held such office under the Government.
On May 3, 1956, the respondent filed an
election petition under s. 81 of the Representation of the People Act, 1951, in
which he submitted that the third nomination paper of the appellant should also
have been rejected as even under the provisions of Durgah Khwaja Saheb Act
(XXXVI of 1955), the appellant was holding an office of profit under the
Government and therefore his case was covered by the provisions of Art. 102
(1)(a) of the Constitution. He also prayed that he be declared elected as the
votes cast in the appellant's favour were " thrown away " votes and
the respondent alone received a majority of valid votes.
A majority of the Election Tribunal by their
order dated January 31, 1957, held that on March 1, 1956, the appellant was
holding an office of profit under the Government and therefore his nomination
paper was hit by Art. 102(1) (a) of the Constitution. They set aside his
election and accepting the contention as to " thrown away " votes
declared the respondent elected. Disagreeing with the majority, the Chairman of
the Election Tribunal held that on March 1, 1956, the appellant was no longer
holding an office of profit under the Government, his nomination paper was
rightly accepted and his election was valid and therefore the respondent could
not be declared elected. On the question whether the two nomination papers of
the appellant dated February 28, 1956, were valid or not the Tribunal
unanimously held them to be invalid on the ground that the appellant held an
office of profit under the Government on that date.
It is not necessary to go into the question
whether the two nomination papers filed by the appellant on February 28, 1956,
were valid or not because if the nomination paper filed on March 1, 1956, is
valid the question of their validity would not arise. It may 390 here be stated
that the argument before us has proceeded on the assumption that the appellant
held an office of profit.
The controversy between the parties was
therefore confined to whether this office of profit was held under the
Government of India and therefore the disqualification for membership under Art.
102(1)(a) applies to the appellant.
In order to resolve this controversy the
important question of construction that arises is: was the appellant holding an
office of profit under the Government of India and does Art.
102(1)(a) of the Constitution operate ? This
article is as follows:
102(1) " A person shall be disqualified
for being chosen as, and for being, a member of either House of Parliament- (a)
if he holds any office of profit under the Government of India or the
Government of any State, other than an office declared by Parliament by law not
to disqualify its holder; " This article occurs under the heading
Disqualifications of Members. In the same part of the Constitution, i.e., Part
V, are given the disqualifications for election to the offices of President and
Vice-President. The relevant part of Art. 58 which lays down the
disqualification for the office of the President is:
Art. 58(1) "No person shall be eligible
for election as President unless he- (a)...............................
(2) A person shall not be eligible for
election as President if he holds any office of profit under the Government of
India or the Government of any State or under any local or other authority
subject to the control of any of the said Governments." There is a similar
provision in regard to the Vice-President in Art. 66(4).
Counsel has rightly pointed out the
difference in the language between the two articles. Whereas in the case of the
President and Vice-President the holding of an office of profit under an
authority subject to the 391 control of the Government is a, disqualification,
it is not so prescribed in the case of members of the legislatures.
The Madarsa Durgah Khwaja Saheb Akbari in
which the appellant held the appointment of a manager (mohatmin) is a school
for teaching Persian, Arabic and Muslim theology.
Before 1951 it was managed and run by the
Government of the Nizam of Hyderabad. In 1951 this school was taken over by the
Durgah Committee. On February 28, 1955, the appellant was given an honorary
appointment of mohatmin (manager) of the school by the Administrator of Durgah
Khwaja Saheb. He was to work under the Administrator and was to hold charge of
the management of the school. But from May 1955 he was being paid Rs. 100 per
month which has been variously described as salary and honorarium.
Counsel for the appellant raised three
questions of construction that this appointment as manager of the school
amounted neither to an office nor to an office of profit nor to an office of
profit under the Government. A decision favorable to the appellant on the last
question, i.e., office of profit under the Government, would render the
decision of the other two questions wholly unnecessary and therefore assuming
that the appellant held an office of profit, the question remains: was it an
office of profit under the Government and therefore fell within Art. 102 (1)(a)
of the Constitution. In order to determine this we have to examine the
provisions of the Statute under which the appointing authority came into
existence and its powers under the statute. Before and up to 1936 the Durgah
Khwaja Saheb Endowment was administered by a committee which was constituted by
the Chief Commissioner of Ajmer under s. 7 of the Religious Endowments Act (XX
of 1863). In 1936 the then Central Legislature enacted the Durgah Khwaja Saheb
Act (XXIII of 1936). By the provisions of that Act the management and
administration was vested in Durgah Committee constituted under s. 4 of the
Act. It was a body corporate with perpetual succession and common seal having
the right to sue and be sued in the 392 name of the president of the Committee.
Under s. 5 which dealt with the constitution of the Committee it was to consist
of 25 members some of whom were elected and some nominated. Section 11(f) of
the Act gave to the Committee the power to appoint all its servants.
The Act of 1936 was replaced by the Durgah
Khwaja Saheb (Emergency Provisions) Ordinance 3 of 1949, which in turn was
replaced by the Durgah Khwaja Saheb (Emergency Provisions) Act (XV11 of 1950).
By s. 3 of that Act the Durgah Committee constituted under the Act of 1936 was
superseded and the management was vested in an Administrator appointed by the
Central Government who under s. 7 was to be under the control of the Central
Government and had all the powers of the committee constituted under the Act of
That Act continued to be in force up to
February 29, 1956, and it was during its continuance that the appellant filed
two nomination papers on February 28, 1956, which were rejected by the
The Act of 1950 was replaced by the Durgah
Khwaja Saheb Act (XXXVI of 1955) which, received the assent of the President on
October 14, 1955, but came into force oil March 1, 1956.
Under s. 4(1) of this Act the administration,
control and management of the Durgah Endowment came to be vested in a
Committee, which is a body corporate having perpetual succession and common
seal and which can sue and be sued through its President. Under s. 5 the
Committee is to consist of not less than 5 and not more than 9 members. of the
Hanafi Muslim faith all of whom are to be appointed by the Central Government.
Section 8 gives power to the Central Government to supersede the Committee.
Under s. 9 the Central Government in consultation with the Committee can
appoint a Nazim (administrator) of the Durgah who is an ex-officio secretary of
the committee. His salary is to be fixed by the Central Government but is to be
paid out of the revenues of the Durgah Endowment funds. The Committee exercises
its power of administration, control and management through the Nazim, 393 The
powers and duties of the Committee are given in s. 11 of the Act; clause (i) of
this section which is relevant for the purpose of this case when quoted runs as
s.11 " The powers and duties of the
Committee shall be- (i) to appoint, suspend or dismiss servants of the Durgah
Endowment." Under s. 20 the Committee has the power to make bye-laws to
carry out the purposes of the Act, and the respondent emphasised clause (1) of
sub-s. 2 which provides:
s. 20 (2) " In particular and without
prejudice to the generality of the foregoing power such bye-laws may provide
for- (i) the duties and powers of the employees of the Durgah."
Sub-section 5 of this section is as follows:
" (5) The Central Government may, after
previous publication of its intention, cancel any bye-law which it has approved
and confirmed, and thereupon the bye-law shall cease to have effect." The
respondent contended that because under the Act of 1955, the Committee of
Management is to be appointed by the Government who also appoint the Nazim
(administrator) through whom the Committee acts and because under s. 6(2) the
Government has the power of removal from office of any member of the Committee
and because the Committee can make bylaws prescribing the duties and powers of
the employees of the Durgah, the appellant was under the control and
supervision of the Central Government and therefore he was holding an office of
profit under the Government of India.
It is significant to note that in laying down
the disqualifications of the President and the Vice-President the Constitution
has expressly provided the disqualifications which include not only an office
of profit under the Government of India or 394 the Government of any State but
also an office of profit under any local or other authority subject to the
control of any of the said Governments. This last disqualification the Constitution
does not make applicable to the members of the legislatures.
No doubt the Committee of the Durgah
Endowment is to be appointed by the Government of India but it is a body
corporate with perpetual succession acting within the four corners of the Act.
Merely because the Committee or the members of the Committee are removeable by
the Government of India or the Committee can make bye-laws prescribing the
duties and powers of its employees cannot in our opinion convert the servants
of the Committee into holders of office of profit under the Government of
India. The appellant is neither appointed by the Government of India nor is
removeable by the Government of India nor is he paid out of the revenues of
India. The power of the Government to appoint a person to an office of profit
or to continue him in that office or revoke his appointment at their discretion
and payment from out of Government revenues are important factors in
determining whether that person is holding an office of profit under the
Government though payment from a source other than Government revenue is not
always a decisive factor. But the appointment of the appellant does not come
within this test.
A number of election cases reported in the
Election Law Reports were cited before us but they were decided on their own
facts and are of little assistance in the decision of the present case. The
test of the power of dismissal by the Government or by an officer to whom such
power has been delegated which was pressed in support of his case by the respondent
is equally inapplicable to the facts of the present case because the appellant
cannot be dismissed by the Government or by a person so authorised by the
Government. He is a servant of a statutory body which in the matter of its
servants acts within the powers conferred upon it by the statute.
The respondent then sought to fortify his
sub. missions by relying on Shivnandan Sharma v. The, 395 Punjab National Bank
Ltd. (1). That was a case under the Industrial Disputes Act and the question
for decision was whether a cashier appointed by the Bank's treasurer on behalf
of the Bank and paid by the Bank was a servant of the Bank. It was held that he
was. The rule of that case is that if the master employs a servant and
authorises him to employ a number of persons to do a particular job and to
guarantee their fidelity and efficiency for cash consideration, the employees
thus appointed by the servant would be, equally with the servant,, servants of
But that again has no application to the
facts of the present case because the appellant has not been employed by a
servant of the Government who is authorised to employ servants for doing some
service for the Government nor is he paid out of Indian revenues. No doubt the
non-payment from out of the revenues of the Union is not always a factor of any
consequence but it is of some importance in the circumstances of this case.
A comparison of the different articles of the
Constitution 58(2), 66(4), 102 (1)(a) and 19 1 (1)(a) dealing with membership
of the State Legislatures shows in the case of members of the Legislatures
unlike the case of the President and the Vice-President of the Union the
disqualification arises on account of holding an office of profit under the
Government of India or the Governments of the States but not if such officer is
under a local or any other authority under the control of these Governments. As
we have said the power of appointment and dismissal by the Government or
control exercised by the Government is an important consideration which
determines in favour of the person holding an office of profit under the
Government, but the fact that he is not paid from out of the State revenues is
by itself a neutral factor.
It has not been shown that the appellant's
appointment as a mohatmin (manager) of the school satisfies any of the tests
which have been discussed above. On the other hand on March 1, 1956, he was
holding (1)  1 S.C.R. 1427.
51 396 his appointment under a Committee
which is a statutory body and such appointment cannot be called an appointment
by or under the control of the Government of India nor is his salary paid out
of the revenues of the Government but out of the funds of Durgah Endowment. In
the circumstances the majority of the Tribunal has erred in holding that the
appellant held an office of profit under the Government and the opinion of the
Chairman to the contrary lays down the correct position.
In view of this finding in regard to the
office of profit under the Government, it is not necessary to go into the
question whether there were any " thrown away " votes or whether the
respondent has been rightly declared to have been elected.
We are of the opinion that the election of
the appellant has been wrongly set aside and we would allow the appeal and set
aside the order of the majority of the Tribunal. The appellant will have his
costs in this court as also before the Tribunal.